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Abstract

Since Daubert, courts have faced difficulty with screening cutting-edge scientific evidence pursuant to Federal Rule of Evidence 702. By inconsistently handling particularly complex epidemiologic studies in Daubert reviews, judges analyzing this science exposed weaknesses of the Daubert system. Weaknesses of the Daubert regime include judicial skills with scientific methods, use of improper bright-line tests, outlier enhancement of experts, and the incompatibility of some judicial procedure with science. Each identified issue presents a reason why a judge may inaccurately evaluate scientific principles. To address these identified weaknesses, this Article proposes modifications to the current system. One way to bring more science back into the courthouse, or to the judge’s chambers, is to permit the appointment of a science consultant under a modified Federal Rule of Evidence 706. For an even smaller subset of more complex cases, advanced science procedures will be needed. A science panel approach, using a modified arbitration panel format, or a centralized court of scientific jurisdiction would have advantages over the current system. By critically examining the breakdown of Daubert in the face of epidemiologic risk evidence, evaluating the nature of the weaknesses in the system, and creating reforms structured to respond to those concerns, we can modify the current Daubert system to allow judges to more consistently, accurately and efficiently handle the most complex, cuttingedge science presented in litigation.